Child Support...Identifying the Legal Issues and Organizing Your Winning Argument!
Q:What reasoning does the Court use when you are challenging their idea that you should be paying child support? How do you build a solid legal issue when the wrong rule of law is being applied?
A:The Court should examine the Rules of Law that each side says apply.
Determine the Rules of Law Before Building Your Argument:
- What are the rules of law that are being applied by the Court and by you?
- Do the rules of law have consistency issues when measured against the U.S. Constitution and Supreme Court precedent?
What we have found is that the family court statutes are inconsistent with the U.S. Constitution and the U.S. Supreme Court rulings. And if you have been reading our material you know that the Supreme Law of the land rules. But perhaps you’ve been struggling with persuading your trial court judge, your attorney, or appellate judges that this is the case in family court.
Here is a chart that you can use as an example:
| Rules of Law Being Argued | Consistency Disputed |
|---|---|
A Statute and a Constitutional Provision:
| You are served with a motion asking the Court to order a social study. The Court orders a social study based on the request stating that they need to find out the situation in each home in order to determine which parent will be primary. Your argument will be whether or not the statute is consistent with the 4th Amendment.*You will add in any controlling rulings from your appellate court and any neighboring or other appellate courts in other states as advisory if you find some that you can apply to the facts of your case. This can be done on all of the examples in this chart. |
A Common Law Doctrine, A Statute, and A Constitutional Provision:
| You are being told that if you do not come to an agreement with the other parent, the court will pick one of you as the Custodial and the other as the NonCustodial parent. You are told that the Court will decide the best interest of your child if you appear before the judge based on some list of criteria either in statute, based on the judge’s own list, or from prior case law setting criteria. The statute supports that the judge determines best interest and not you (the fit parent).*You will add in any controlling rulings from your appellate court and any neighboring or other appellate courts in other states as advisory if you find some that you can apply to the facts of your case. This can be done on all of the examples in this chart. Your argument will be whether or not the Doctrine and the Statute are consistent with The Fourteenth Amendment of the U.S. Constitution. |
A Statute, Public Policy, controlling appellate rulings, advisory rulings, and A Constitutional Provision:
| You are being told that since the other parent was the stay-at-home parent during the marriage that the Court is inclined to leave things that way so that the child’s status quo is not disturbed. Public Policy says each parent should have frequent time, but doesn’t list how much time that would be. Your argument will be whether or not the Statute is consistent with the interpretation of the U.S. Constitution by the U.S. Supreme Court. Your argument will also be whether the Public Policy is consistent with the interpretation of the U.C. Constitution by the U.S. Supreme Court. *You will add in any controlling rulings from your appellate court and any neighboring or other appellate courts in other states as advisory if you find some that you can apply to the facts of your case. This can be done on all of the examples in this chart. |
A Statute and State Constitution:
| You are being told that if you do not undergo a psychiatric evaluation that you will not see your child until you do and that you will be considered guilty of anything you are being accused of if you do not. Your argument will be whether this statute is consistent with the State Constitution and the 4th and 5th Amendment of the U.S. Constitution.*You will add in any controlling rulings from your appellate court and any neighboring or other appellate courts in other states as advisory if you find some that you can apply to the facts of your case. This can be done on all of the examples in this chart. |
A State Statute, a Federal Statute, and a Constitutional Provision:
| You are told that the Court will deprive you of your time with your child and then make you pay the other parent for the time that you have been deprived. You are also told that child support is calculated based on your income if you are the one who loses time with the child. Your argument will be whether the state statute and the federal statute is consistent with the U.S. Supreme Court opinions. |
As you can see this chart will work with any issues, not just child support. But let’s get back to child support. You will notice, the last section in the chart refers to Title IV-D. You have a unique situation in that box...you are challenging not just a state statute but also a federal one. The State feels especially justified because they have the added layer of the federal statute mandating that they create statutes to award child support.
It’s going to be your job to point out any inconsistencies with the way that the State is applying this federal mandate as well as any inconsistencies with the State and even the Federal statutes with the U.S. Constitution and the U.S. Supreme Court rulings.
Make your own chart with the issues that you face so you can keep track of the issues you are addressing. See our other posts here in this blog and on the Family Rights wiki for examples of arguments that might help you with the issues that you have identified apply to your situation. And also remember to Shepardize the cases. If you need to know more on what that is, watch this video:
If this sounds confusing, don't worry you can also go to an automated service Shepard's at LexisNexis or Westlaw's Keycite. These can be very expensive. Or you can take our course 2 and learn a lot more than just Shepardizing. Course 2: Restoring Your Authority, Creating Your Blueprint and have us at your fingertips in pre-recorded courses that we taught previously.
When you start charting these things out they become much easier to deal with. It becomes much clearer what you need to address. Hopefully this will help you stay on point and strengthen your argument.
Check back tomorrow for some more tools that will help you figure out this family court puzzle!
Read our book for how to develop your arguments and for citations of specific cases that you can use in your arguments to the court when you are arguing for the proper protection of your family rights.
[CLICK HERE to get the Parental Rights book “NOT in The Child’s Best Interest.]
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Fix Family Courts Editorial Team
Strategic Parental Rights Strategists, Instructors, Constitutional Scholars & Authors
Divorce Solutions and Child Custody Solutions
Co-authors: “Not in the Child's Best Interest” & “Protecting Parent-Child Bonds: 28th Amendment”